Briana Hauser

FOSTA/SESTA Becomes Law Despite Strong Opposition

On April 11, 2018, the President signed FOSTA/SESTA into law. The bill combines largely similar House and Senate versions, both intended to target sex trafficking online.1 Though each passed with broad bipartisan support in Congress, FOSTA/SESTA has been highly controversial within the tech community and, notably, among anti-trafficking advocates and sex worker advocates.

The Internet Association initially opposed SESTA in August 2017,2 but offered its support for an amended version in November 2017. However, in March 2018, the Association issued a lukewarm statement on FOSTA/SESTA, asserting that it would continue its work “to preserve Section 230 and prevent attempts to weaken this crucial protection.”3 Section 230 of the Communications Decency Act (CDA), to which the statement refers, generally protects online platforms from liability for user-created content.4 FOSTA/SESTA amends Section 230 with the purpose of expanding civil liability and state criminal liability where online platforms act with the “intent to promote or facilitate” prostitution.5

FOSTA/SESTA was the response to a 2016 sex trafficking case involving that was dismissed under Section 230.6 The First Circuit concluded that Backpage’s choices about “what content can appear on the website and in what form,” did not amount to content creation, but were instead editorial choices protected under Section 230.7 Many viewed this result as an affront to victims of sex trafficking and a loophole for companies like Backpage to profit from trafficking.

Nothing in Section 230 protects online forums from being charged under criminal law. Federal criminal law prohibits knowingly facilitating prostitution,8 and knowingly selling, soliciting, or advertising the sexual services of victims of sex trafficking.9

A 2016 Senate Committee Report found that is likely not immune under Section 230 and still faces federal investigation and a renewed lawsuit from trafficking victims.10

In fact, on March 28, 2018, seven Backpage leaders were charged in a 93-count federal indictment for conspiracy to facilitate prostitution, and on April 6, the FBI shut down as part of an enforcement action.11 FOSTA/SESTA will likely not be enforced until January 2019.

Proponents of FOSTA/SESTA argue that the bill is narrowly tailored to protect women and children from online sex trafficking. The original sponsors, Sens. Rob Portman (R-Ohio) and Richard Blumenthal (D-Conn.), describe it as a “milestone in our fight to hold online sex traffickers accountable and help give trafficking survivors the justice they deserve.”12

However, critics, including many sex workers, anti-trafficking advocates, internet free speech advocates, and the Department of Justice,13 have called FOSTA/SESTA a threat to safety and freedom. While commending attempts to address trafficking, they argue that the legislation will not only eliminate tools to monitoring trafficking, but also make sex work more dangerous and stifle already marginalized voices.14

The same websites FOSTA/SESTA targets for trafficking advertisements are frequently used by individuals involved in the sex trade—from victims of trafficking to willing sex workers—as a platform for resources. Through them, individuals can find clients, share information about dangerous clients, find referrals to emergency housing and sex worker-friendly service providers, and dispense health information.15

FOSTA/SESTA supporters cite data on the increased use of online advertisements to facilitate sex trafficking as support for the bill’s approach.16 However, there is substantial evidence that online platforms make sex work safer. A 2017 study found a 17 percent decrease in homicide of female victims after Craigslist erotic services were introduced in various cities.17 Online platforms also decrease the need to rely on a pimp to find clients, allowing for independence and reducing the risk of exploitation.18 Without them, sex workers will likely be forced from indoor working conditions to the streets, where they face an increased risk of violence, STIs, and exploitation.19 Additionally, law enforcement has said that the increase in internet use has facilitated investigations of sex trafficking by providing electronic trails to better identify and monitor potential victims and prosecute perpetrators.20

Victims of trafficking are often lured in with promises of a relationship, financial independence, or reputational gains rather than through forceful kidnapping.21 As one writer/drag queen/gay porn performer notes, “Few of us engage in sex work with total freedom or under total bondage. We do any kind of work not purely because we want to, but because we live in a society in which we are made to, whether it is by a pimp or a landlord or a collections agency.”22 Truly effective legislation, advocates argue, should focus on addressing the causes of trafficking, including unemployment and lack of safe paths to migration, rather than criminalizing sex work and related acts.23

Opponents of FOSTA/SESTA say it will shut down these online forums, raising concerns not only of sex workers’ physical safety, but also their right to free speech and association.24 These communities are already disproportionately marginalized—often composed of LGBTQ, people of color,25 and homeless youth who lack other employment opportunities. Companies faced with the challenge of monitoring their forums will likely turn to bots and other tools that offer imprecise and often over-cautious filtering that frequently stifle marginalized voices.26

Organizations including the ACLU27 and Freedom Network USA,28 have argued that the law will force sites to shut down and impose prohibitive restrictions on users in order to avoid any liability—a fear that has already begun to be realized.29

GLTR Staff Member; Georgetown Law, J.D. expected 2019; The Pennsylvania State University, B.S. 2014. ©2017, Briana Hauser.